Pirates Uncovered - Dallas Buyers Club's Landmark Case in Australia

Piracy is considered by many in the entertainment industry to be the plight of the 21st century creative minds and pockets (and the pockets' of many shareholders, one would think). What ever your thoughts on copyright piracy, the topic remains a hot-button issue, and the courts have been, and will undoubtedly continue to, battle with for years to come. With this in mind, the enforcement of rights online has proven difficult, especially when a user, either downloading or sharing said infringing content, is effectively hidden behind a single Internet Protocol (IP) number, which does not accurately identify the given user (as discussed here in some manner relating to the US). The battle between Internet Service Providers (ISPs) and copyright holders has been an active one regarding this, and a recent decision in Australia seems to have opened the door to potentially combating this issue on the copyright holders' end, at least for now.

The case in question was Dallas Buyers Club LLC v iiNet Limited, which dealt with the very successful movie Dallas Buyers Club that was, among other things, nominated for 6 Oscars in its year of release. Due to the movie's immense success, it was promptly shared online, and in an action for preliminary discovery, the movies' rights holder Dallas Buyers Club LLC sought to identify the individuals behind all 4726 unique IP addresses associated with sharing the movie online through the 6 respondent ISPs in the action. The ISPs contested this application on several grounds, but the first instance decision lay with the Federal Court of Australia.

Although the respondents actively contested the ownership of the copyright in the work (decided as being held by Dallas Buyers Club LLC, with very little resistance from the Court), and other matters underpinning the case at hand, the meat of the discussion lay in the possible allowance of discovery in relation to the aforementioned IP addresses.

The secret life of a copyright infriger (Source: Bizarro Comics)

Under the Australian Federal Court Rules 2011 a party can seek for the identification of an unknown party should they have a cause of action against that person under certain requirements: "(a) there may be a right for the prospective applicant to obtain relief against a prospective respondent; and (b) the prospective applicant is unable to ascertain the description of the prospective respondent; and (c) another person (the other person): (i) knows or is likely to know the prospective respondent’s description; or (ii) has, or is likely to have, or has had, or is likely to have had, control of a document that would help ascertain the prospective respondent’s description." Clearly, as the individuals sharing the movie are behind an IP address, and therefore hard to identify without information from the ISP as to who is behind said IP address, Dallas Buyers Club, at least prima facie, had a case to find out who these people are under the Act.

Regardless of the ISPs' rejection of Dallas Buyers Club's assertions under the three requirements of the Act, the Court saw that they had fulfilled the requirements and were therefore entitled to disclosure as to the users' identities. They had a right to seek relief as to a potential breach of their copyright; they could not identify the individuals committing that infringement; and the ISPs knew or were likely to know who they were, or at least would be in possession of their subscriber details based on fixed IP addresses.

Even though Justice Perram allowed the disclosure of the users' information to Dallas Buyers Club, he did however set certain restrictions on it, which will be set by the parties later in the process. Dallas Buyers Club have indicated that they want the details disclosed by May 6th, but the letter that will be sent out will be determined on a later note as well.

Although the case is an important landmark in the fight against piracy, the disclosure of individuals' details in relation to copyright infringement is nothing wholly new. In Canada, under the Federal Court Rules, the disclosure of such information is very similar to the Australian provision; and Voltage LLC, the parent company of Dallas Buyers Club, has successfully used the provision to gain such information in Canada in the case of Voltage Pictures LLC v John Doe. Similarly, in the UK, a Norwich order (the equivalent of the Australian provision's application) was issued for copyright infringement through which subscribers' details were disclosed to the copyright holder in Golden Eye (International) Ltd & Anor v Telefonica UK Ltd. Both cases also discuss the restrictions needed in the event of such disclosure, such as: "[p]utting safeguards in place so that alleged infringers receiving any “demand” letter from a party obtaining an order under Rule 238 or a Norwich Order not be intimidated into making a payment without the benefit of understanding their legal rights and obligations... [s]pecific warnings regarding the obtaining of legal advice or the like should be included in any correspondence to individuals who are identified by the Norwich Order... [l]imiting the information provided by the third party by releasing only the name and residential address but not telephone numbers and e-mail addresses... [and] [r]equiring the party obtaining the order to provide a copy of any proposed “demand” letter to all parties on the motion and to the Court prior to such letter being sent to the alleged infringers". These, among others, will undoubtedly be considered by the Australian courts in their application of such orders in the future, and in this case specifically.

As one could imagine, the case has spawned a huge amount of discussion, especially relating to Voltage Pictures' previous strong-arm tactics in their letters to infringers. Nevertheless, the cold application of the law, at least to this writer, seems to be quite accurate, and individuals who engage in such activities need to understand the risks associated with illegal copying of media online. The Dallas Buyers Club case clearly sets the stage for more direct, stronger enforcement of copyright within Australia, and it remains to be seen how the provision will be utilized in the future, and what restrictions the courts ultimately put on the disclosure of subscribers' details and the usage thereof.

Source: Sydney Morning Herald

Public Consultation on EU Copyright Law

Copyright reform seems to be on everyone's mind, with reviews being or having been undertaken in the United Kingdom, Australia and Ireland in the past year. Even in this writer's mind copyright has been in dire reform in many jurisdictions, and the calls for change are a welcome change of pace. In conjunction with the aforementioned two EU common law jurisdictions' reform thoughts, the Union itself has set up consultations on the review of its copyright rules. The harmonization of copyright across the EU is something that is desired, especially in the current copyright climate, which is seeking to fit the laws with modern uses of copyrighted material.

According to the European Union's press release this is in response to "...the completion of its on-going efforts to review and modernise the EU copyright legislative framework as announced in the Intellectual Property Strategy "A Single Market for Intellectual Property Rights", while facilitating practical industry-led solutions through the stakeholder dialogue Licences for Europe to issues on which rapid progress was deemed necessary and possible". What this revision will change will ultimately be left to the EU; however the consultation does indicate certain desired changes or directions which the Union may take in the future.

In setting out the reasons for the consultation, the EU was very clear in the background and needs for reform:

"Over the last two decades, digital technology and the Internet have reshaped the ways in which content is created, distributed, and accessed. New opportunities have materialised for those that create and produce content... for new and existing distribution platforms, for institutions such as libraries, for activities such as research and for citizens who now expect to be able to access content... regardless of geographical borders... This new environment also presents challenges. One of them is for the market to continue to adapt to new forms of distribution and use. Another one is for the legislator to ensure that the system of rights, limitations to rights and enforcement remains appropriate and is adapted to the new environment."

Indeed the changes in the environment where copyright functions on a day-to-day basis have drastically changed since the emergence of the Internet and a heavier emphasis on the consumption of digital goods as opposed to their physical counterparts. How the aforementioned issues will be tackled leaves a lot of room for discussion in submissions; however this writer will endeavor to give his insight on some of the solutions or questions posed by the Union.

The EU in this process would want to unify the approach to copyright within all of its territories; which currently is a process which takes place in each nation individually, hindering licencing or forcing partial or separate EU-whole licences to be created. Arguably such a licencing scheme would be desirable, but whether this requires legislative action is questionable. The Union should offer an easy way to licence content all over Europe, providing all of its citizens access to the same or most of the content others have access to. The Single Market in this regard needs to be encouraged, not necessarily further legislated on.

The EU also wants to further clarify the position the law holds with digital content; more specifically the making available of content and what that entails; the rights relating to the making available of content (its reproduction and the right to make it available) and their split nature between different parties; the complexity of linking on the Internet and browsing content on it (and issues that might arise relating to temporary copies thereof); and the ownership of downloaded content. Some of these questions, as pointed out by the consultation paper, have been referred to the Court of Justice of the European Union, and those decisions will undoubtedly influence the changes that might be needed after, if at all.

The paper also seeks to further clarify, and potentially unify, the approaches taken by Member States to exceptions in relation to copyrighted content and their use. Although several a Directive has been issued pertaining to exceptions particularly, for example in terms of research and teaching, there is a clear need for uniformity and the extension of new exceptions in this regard, at least in this writer's opinion. A clear and concise regime of legitimate use of copyrighted content all over the EU would be beneficial to users, and enable the Single Market to function more consistently and easier. As the paper points out, user-generated content is an important consideration, which is yet to be legislated on, among a few other exceptions. As said, this is one area where the EU should step up and give further guidance and unification, purely due to the international nature of digital content especially, easing the modern markets and unifying their approaches within the Union.

The consultation paper contains much more than what has been discussed above, and all parties which can participate in this process should voice their opinions. Although the EU has been far from complacent in recent years in terms of copyright review, this process gives the ability for others to directly influence this process, and therefore improve the current Single Market. Copyright has been a hot-button topic, and seems to keep as such for the foreseeable future.

Source: TorrentFreak